California Court of Appeal Jun 12, 2024 No. E081352Unpublished
Filed 6/12/24 P. v. Mora CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E081352 & E081353
v. (Super.Ct.Nos. FWV19002483 & 16CR038681) CHRISTIAN L. NIETO MORA, OPINION Defendant and Appellant.
Appeal from the Superior Court of San Bernardino County. Kyle S. Brodie,
Judge. Affirmed.
Laura R. Vavakin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Charles C. Ragland, Assistant Attorney General, Daniel Rogers, Kristen Chenelia, and
Matthew C. Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
1
Christian Leonardo Nieto Mora (Nieto) is a Colombian citizen who entered the
United States on a tourist visa in 2013. He has not left the United States since then. In
2016, he pled no contest to grand theft. (Pen. Code, § 487, subd. (a); unlabeled statutory
citations are to this code.) In 2019, he pled no contest to opening or maintaining a place
for unlawfully selling a controlled substance. (Health & Saf. Code, § 11366.) Nieto
moved to vacate the 2016 and 2019 convictions under section 1473.7, subdivision (a)(1),
and the trial court denied both motions. We affirm.
BACKGROUND
I. Nieto’s 2016 conviction for grand theft
The People filed a complaint in August 2016 charging Nieto with grand theft of
personal property. (§ 487, subd. (a).) Isaac Vega represented Nieto in the case.
According to the police report, Nieto forged a driver’s license, title to a Porsche,
and a bill of sale for the Porsche, and he then listed the Porsche on eBay for sale. He
found a Porsche for sale on another website and used the images and videos on that site
to create his eBay listing. The victim responded to Nieto’s listing and transferred
$42,500 to Nieto’s accounts, and after she tried for several days to pick up the car, Nieto
blocked her phone calls and emails. When officers searched Nieto’s home, they found
evidence of other forged driver’s licenses, titles to cars, and bills of sale, including forged
documents relating to a Ferrari, a Bugatti, and a Lamborghini.
In November 2016, Nieto pled no contest to the single count of grand theft. The
parties stipulated that the police report provided a factual basis for the plea. At the plea
hearing, the court asked Vega whether he had explained to Nieto “all immigration
2
consequences that might apply.” Vega responded that he had done so with the assistance
of the Spanish language interpreter. On Nieto’s signed plea form, Nieto initialed the box
next to the following advisement: “I understand that if I am not a citizen of the United
States, deportation, exclusion from admission to the United States, or denial of
naturalization will result from a conviction of the offense(s) to which I plead guilty/no
contest.” Nieto also initialed the box next to an advisement stating that his attorney had
“explained . . . other possible consequences of this plea.” That advisement was followed
by a list of consequences, and the form directed the user to “[c]ircle possible
consequences.” The list of possible consequences included an “[o]ther” category,
followed by a blank line. None of the consequences was circled, but someone had
handwritten “Possible immigration consequences” on the blank line next to “[o]ther.”
The court suspended imposition of sentence, placed Nieto on probation for three
years, and ordered him to serve 90 days in county jail as a condition of probation. The
court specified that he was eligible to serve the jail time through the work release
program. In addition, the court ordered him to pay $42,847.24 in restitution to the victim
of the theft offense.
II. Nieto’s 2019 controlled substance conviction
The People filed a felony complaint in August 2019 charging Nieto with four
offenses: possession for sale of a controlled substance (MDMA);1 forgery or
counterfeiting of seals; possession of a forged driver’s license or identification card; and
1 MDMA stands for methylenedioxymethamphetamine, “colloquially known as ‘Ecstasy.’” (People v. Patterson (2017) 2 Cal.5th 885, 889, fn. 1.) 3
making, possessing, or trafficking in incomplete access cards or cardmaking equipment.
(Health & Saf. Code, § 11378; Pen. Code, §§ 470b, 472, 484i, subd. (c).) The People
also filed a petition to revoke Nieto’s probation in the 2016 case. Christopher Koch
represented Nieto in 2019.
According to the police report, officers conducted a probation search of Nieto’s
home and found 94 pills that appeared to be MDMA. Officers field tested several of the
pills, and they were positive for MDMA. Ninety of the pills were packaged in 10-pill
increments. The officers also found hundreds of Viagra pills, $15,550 in cash, 84 unused
baggies that were identical to the packaging for the MDMA pills, a forged identification
card, a credit card reader/writer, and dozens of blank cards with write capabilities and
embedded security chips. Nieto’s wife told the officers that she liked to take MDMA and
that the pills belonged to her. She said that there were roughly 50 pills and described
them as pink and red without markings. But 40 of the pills were purple, 54 of them were
pink, and all of them had markings. Some were embossed with “AUDI” on one side and
the Audi symbol on the other side. Others had a skull on one side and the letters “PP” on
the other side. And a third group were embossed with “EA SPORTS” on one side and an
asterisk on the other.
When the officers interviewed Nieto, he accurately described the color of the pills
and knew that they were marked with “Audi and Skeletons.” He said that he used the
forged identification card to play in a 35-plus soccer league. (He was only 33 years old.)
In addition, he said that he used the credit card reader/writer to make identification cards
for his soccer league.
4
At the plea hearing in September 2019, the People moved to add a fifth count to
the complaint—opening or maintaining a place for unlawfully selling a controlled
substance. (Health & Saf. Code, § 11366.) Nieto pled no contest to that offense and
possession of a forged driver’s license or identification card, and the court dismissed the
remaining counts. (§ 470b.) The parties stipulated that the police report provided a
factual basis for the plea. On Nieto’s signed plea form, Nieto initialed the box next to the
following advisement: “I understand that if I am not a citizen of the United States,
deportation, exclusion from admission to the United States, and denial of naturalization
may, and for certain offenses will, result from a conviction of the offense(s) to which I
plead guilty/no contest.” The court suspended imposition of sentence, placed Nieto on
probation for three years, and ordered him to serve 270 days in county jail as a condition
of probation. As part of the plea agreement, Nieto agreed to forfeit the cash found during
the search of his home to the victim of his 2016 theft offense. With respect to the 2016
case, Nieto admitted the probation violation, and the court revoked and reinstated his
probation.
III. Motions to vacate the convictions
Nieto filed a motion to vacate his 2016 conviction and a separate motion to vacate
his 2019 conviction for the controlled substance offense. In both cases, he argued that
under section 1473.7, he did not meaningfully understand the immigration consequences
of his pleas, and he would have rejected the pleas if he had understood the consequences.
5
Nieto submitted declarations in support of the motions.2 The declarations stated
that he was from Colombia and had fled the country after persecution by a paramilitary
group, the Revolutionary Armed Forces of Colombia. Members of the group had
violently beaten him, dispossessed his family of land, extorted him and his family, and
threatened their lives. He said that his “priority has always been” remaining in the United
States because he will be killed in Colombia.
With respect to the 2016 grand theft offense, Nieto stated that he retained Koch,
and Koch knew that his top priority was immigration. Koch told him that Koch would
negotiate an agreement that would keep Nieto out of jail so that he would not have
problems with immigration. But Koch sent Vega to represent Nieto at the plea hearing.
Vega did not mention anything about the immigration consequences of Nieto’s plea.
Vega merely said that he had negotiated a good plea deal and that Nieto would not serve
one day in jail. Instead, Nieto would get 90 days of community service and probation.
Vega pushed Nieto to sign the plea agreement right away, and he did not explain what the
agreement said. The agreement was in English, and Nieto did not have an interpreter.
Nieto stated that he would not have accepted the plea deal if he had known about the
immigration consequences; he would have fought his case and gone to trial.
2 Nieto’s unsworn declarations did not contain any certification that the facts stated in them were “true under penalty of perjury.” (Code Civ. Proc., § 2015.5; People v. Pierce (1967) 66 Cal.2d 53, 59.) The People objected on that basis to the admission of the declarations, but the court overruled the objection, reasoning that the objection went to the weight of the evidence, not its admissibility. 6
With respect to the 2019 controlled substance offense, Nieto again retained Koch.
Nieto said that he asked Koch whether “something could happen to [him] with
immigration.” Koch replied that he would call his friend, who was an immigration
lawyer. After the call, Koch told Nieto that he was going to ask the prosecutor to change
the offense to maintaining a house where drugs were used, instead of possession for sale.
The prosecutor agreed to that alternative charge. Koch advised Nieto that “in the eyes of
immigration,” that offense was better, so Nieto agreed to it. Koch also told him that the
plea deal was very good, it would not affect his immigration case, and it was immigration
safe. Koch pressured him to sign the plea agreement quickly and advised him that if he
did not accept the offer, then he would face three years in prison. Koch told Nieto where
to sign and initial on the agreement, but no one explained what Nieto was signing.
Nieto stated that the federal government was now trying to deport him, and
Immigration and Customs Enforcement (ICE) had detained him for over six months. He
also said that he would not have taken the plea deal if he had known about the
immigration consequences; he would have fought for an immigration safe plea or taken
his case to trial. When ICE detained him, he was working a good job, coaching his
children’s soccer team, taking care of his family, and living in a nice home.
Besides his declarations, Nieto also submitted evidence of his tax returns for 2016
to 2019; his marriage certificate showing that he and his wife were married in San
Bernardino County in 2020; one daughter’s birth certificate showing that she was born in
2017 in Los Angeles County; birth certificates for his two other daughters showing that
one was born in 2007 and the other was born in 2008, both in Colombia; medical records
7
for one daughter showing that she was hospitalized after attempting suicide in
March 2019; a 2016 agreement for him to serve as an independent contractor for a digital
entertainment company; a 2022 statement of information for a California corporation
identifying Nieto and his wife as the officers and directors of the corporation; a 2021
grant deed transferring real property in Palmdale to Nieto and his wife; a 2023 mortgage
statement for that same property identifying Nieto as the borrower; and character
reference letters from five friends and two of his daughters.3
Nieto’s motion exhibits also included a January 2020 notice to appear in his
immigration case. The notice alleged that he is a native and citizen of Colombia, he is
not a citizen of the United States, he was admitted to the United States in June 2013 with
authorization to remain for 180 days, he remained in the country without authorization
after that period had expired, and he therefore was removable.
IV. Hearing on the motions
The trial court held an evidentiary hearing on both motions to vacate the
convictions in March 2023. Nieto, Vega, and Koch testified at the hearing. Just before
Nieto testified, he moved to exclude Vega and Koch from the courtroom. The court
denied the motion. It observed that “certainly the Court has authority to exclude
witnesses under Evidence Code section 777, but the purpose of excluding witnesses is to
prevent tailored testimony and to aid in the detection of less-than-candid testimony.” The
3 The birth certificate for Nieto’s oldest daughter identifies someone other than Nieto as her father. The child’s letter indicates that although Nieto is not her biological parent, she considers him to be her father. 8
court reasoned that there was not “any significant risk of [Vega and Koch] tailoring their
testimony in a way that would be less than candid merely being present at the testimony
of” Nieto.
A. Nieto’s testimony
Nieto is a Colombian citizen. He entered the United States in June 2013 on a
tourist visa and had not left the United States since then. Two of his children were born
in Colombia, and the third was born in 2017. Their mother also is Colombian. Nieto’s
parents and siblings live in Colombia, and he has extended family there as well. At the
time of his 2016 plea, Nieto was living with his partner, had children and a job, and had a
place to live. He was not willing to give up all of that to return to Colombia, and he had
no plans to return to Colombia. His immigration status was important to him.
Nieto hired Koch to represent him in the grand theft case. He never talked to
Koch about his immigration status. Koch sent Vega to represent Nieto at the plea
hearing. Nieto asked Vega whether the plea deal had any immigration consequences, and
Vega said that if the agreement did not include any jail time, then there would be no
immigration consequences. Nieto believed that the 90-day sentence for his grand theft
offense was community service, not jail time. Nieto had an interpreter at his plea
hearing; he had erred by stating in his declaration that he did not have an interpreter.
Nieto again hired Koch to represent him in the 2019 case. The prosecutor’s initial
offer was a plea to possession for sale of a controlled substance and forgery. Nieto asked
Koch if those convictions would have immigration consequences, and Koch replied that
he was going to call a friend who was an immigration attorney. Koch returned a little
9
over an hour later and said that he was going to ask the prosecutor to change the offense
to “maintaining a place for drugs,” which would be better for immigration purposes. The
prosecutor agreed to that alternative offense, and Nieto pled to it.
Nieto’s immigration attorney has since advised him that his 2019 conviction is
“terrible for immigration.” If he had known that at the time, then he would not have
accepted the plea deal and would have fought the case. He initialed the boxes on the plea
forms stating that there will or may be immigration consequences because he was
following his counsel’s advice. The “most important thing to” him in both cases was his
immigration status.
Nieto was applying for a U visa because his daughter was a rape victim. (See
Medina Tovar v. Zuchowski (9th Cir. 2020) 982 F.3d 631, 633, 636 [noting that a U visa
“is designed to grant legal status to certain non-citizen victims of crime who assist law
enforcement,” and certain qualifying relatives of the victim may be eligible for a
derivative U visa].) He believed that his application would be denied because of his
convictions.
Nieto applied for asylum in February 2020 because he feared that he would be
killed if he returned to Colombia. He was supposed to file the asylum application within
one year of entering the country but did not do so; he did not want to remember
everything that had happened to him in Colombia. He had moved for an exception to the
one-year rule.
10
B. Vega’s testimony
Vega was licensed to practice law in June 2014. He focused primarily on
immigration law for the first few years of his practice but also did some criminal defense
work.
Vega had checked with Koch’s firm to see whether it still had Nieto’s client file
from 2016, and there was none. But Vega remembered Nieto’s case. The case was clear
in his mind because of the sophistication involved. Nieto displayed “savvy” by creating
false advertisements selling high-end, luxury vehicles like Ferraris, Porsches, and a
Bugatti. Vega had not encountered another case with that level of sophistication, so the
case stood out to him.
Vega appeared in court four times with Nieto—the arraignment, two settlement
conferences, and the plea hearing. He also met with Nieto outside of court. Vega did not
think that trial was a viable option in Nieto’s case, and he discussed that opinion with
Nieto. Vega was concerned about other charges that could have been brought against
Nieto, such as wire fraud, which carried a 20-year federal prison sentence. The officers
had also found paperwork for numerous other falsified vehicle advertisements during
their search, so other charges for attempt or forged government seals were a risk if the
case proceeded. In addition, the court had set Nieto’s bail at $100,000, and Vega
anticipated that the prosecution was not going to be lenient. Nieto had admitted to the
charged conduct after officers had advised him of his rights under Miranda v. Arizona
(1966) 384 U.S. 436.
11
Vega discussed immigration consequences with Nieto. Vega was aware that Nieto
was a noncitizen and was not a legal permanent resident, so part of his analysis was to
research any potential immigration consequences. His practice was to look at a quick
reference guide prepared by the Immigrant Legal Resource Center (ILRC), and he
reviewed the portion of that guide relating to theft offenses before meeting with Nieto.
The ILRC guide stated that grand theft was considered a crime involving moral turpitude.
A person convicted of a crime involving moral turpitude within five years of entering the
United States becomes removable or deportable and inadmissible.
Vega told Nieto that he was “out of status” and “removable as is,” and a grand
theft conviction under section 487 would make him deportable and inadmissible. He
gave Nieto specific and very detailed advice about the immigration consequences.
Nieto’s response “was akin to ‘I’ll take care of that when it happens,’” or “‘I’ll take care
of that if and when it happens.’” Vega again told him that he was going to be removable
and inadmissible. Vega never told Nieto that there would be no immigration
consequences if he avoided jail time.
Vega sought a continuance in the case and asked Nieto to think “long and hard”
about how he wanted to proceed, in light of both the criminal and immigration
consequences of the case. He believed Nieto “was in a particularly bad situation.” Vega
did not think that an immigration-neutral plea like burglary was an option. The facts
would not have supported a burglary plea. Vega did not discuss with the prosecutor
whether receiving stolen property was an option for the plea deal.
12
By the next court date, the prosecutor had offered probation and some work
release. Vega told Nieto that he did not have to take the offer and that they could take the
case to trial, but Nieto said that he wanted to plead. Vega reviewed the plea form with
Nieto and with the assistance of a Spanish-language interpreter. Vega went over each
item on the form, including the standard advisement about immigration consequences and
the section about other possible consequences of the plea. He handwrote “Possible
immigration consequences” in that latter section. He did not write what he told Nieto
about the specific immigration consequences because he did not want to disclose Nieto’s
immigration status.
C. Koch’s testimony
Koch was admitted to the bar in 2000 or 2001. He primarily practices criminal
defense. When Koch represented Nieto in 2019, he was focused on two things—keeping
Nieto out of prison and getting rid of the possession for sale charge. He had searched for
Nieto’s client file from 2019, but he could not find it.
Nieto’s wife insisted that the MDMA found during the probation search belonged
to her, and Nieto corroborated that. Koch thought that the evidence suggested otherwise,
but he nevertheless pushed that narrative with the prosecutor and worked hard to
eliminate the possession for sale charge. The prosecutor did not buy the claim that the
MDMA was for personal use, given the amount of the drug.
Koch did not want the case to proceed to a preliminary hearing, because he felt
strongly that after that point, any plea offers would include prison time. The prosecutor
had read the file in Nieto’s 2016 case, and he “really wanted to send [Nieto] to prison.”
13
The prosecutor was “offended” by Nieto’s conduct and the probation violation. The
prosecutor was “particularly offended” that officers found over $15,000 in Nieto’s house,
given that Nieto owed over $40,000 in restitution and had not paid much of that. Koch
thought that the evidence against Nieto was “not weak” and was “pretty strong.”
Koch knew that Nieto was very concerned about immigration. He also knew that
Nieto was in the country illegally and wanted to adjust his immigration status in the
future. During plea negotiations, Koch contacted an attorney friend who had experience
in immigration law. They spoke for 15 to 30 minutes. He asked his friend what kind of
charges would be fatal for immigration, and his friend advised him to avoid a sales
charge and a prison sentence. His friend said that “[t]his other drug charge” was “better”
than a sales charge “but still not great for immigration.” Koch was “honest and described
the situation for” Nieto. He told Nieto that a conviction under Health and Safety Code
section 11366 was better for immigration purposes than the sales offense, but it still
“could be bad for immigration” in that it could lead to deportation and denial of
naturalization. He also told Nieto that he believed Nieto would end up with a prison
sentence if the case proceeded past the preliminary hearing, which Koch thought was
“really bad,” because that would make the offense an aggravated felony for immigration
purposes. Koch understood that an aggravated felony was particularly damaging because
it could lead to mandatory deportation. Koch knew that the sales charge was considered
an aggravated felony, but he could not recall whether his friend told him that a conviction
under Health and Safety Code section 11366 was also considered an aggravated felony.
14
But he believed that the sales charge was the more serious of the two. Koch had never
heard of “the unspecified controlled substance defense.”
Nieto chose to accept the plea deal, and Koch went over the plea form with him,
including the section regarding immigration consequences. Nieto did not seem happy
and would have been much happier if Koch could have gotten the case dismissed. But
the prosecutor did not want to dismiss the case or agree to a nondrug charge. The
prosecutor wanted some sort of drug conviction, so Koch proposed a possession charge.
The prosecutor rejected that offer. If a nondrug charge were an option, Koch would have
continued the case and had a longer conversation with his immigration attorney friend
about specific alternatives.
Koch went back to the prosecutor three or four times to get an offer that did not
include prison time. He got the prosecutor to agree to 270 days in custody, down from
the initial offer of 16 months or two years, and Nieto was happy about that. Koch
believed that he had negotiated the best deal possible, given that Nieto was on probation,
he was facing new charges, and the prosecutor thought that the 2016 conviction was
“aggravated to begin with.”
D. Court’s ruling
The court denied both motions to vacate the convictions. The court ruled that
Nieto failed to establish he did not meaningfully understand the immigration
consequences of his pleas. The court found that on the contrary, Nieto understood the
immigration consequences. It observed that Vega credibly testified that he discussed the
immigration consequences of the 2016 plea with Nieto. In addition, Koch credibly
15
testified that he informed Nieto of the “significant immigration consequences” of his
2019 plea. The court noted that Vega’s and Koch’s testimony was consistent with the
plea forms, in which Nieto initialed the sections advising him of possible immigration
consequences.
The court also ruled that Nieto failed to establish “that he would not have entered
the pleas even had he known about those consequences in more detail than he already
[did], notwithstanding the fact that he did understand the consequences, in the Court’s
view.”
DISCUSSION
I. Denial of motion to exclude witnesses from the courtroom
Nieto argues that the court erred by denying his motion to exclude Vega and Koch
from the courtroom during Nieto’s testimony. The argument lacks merit.
“[T]he court may exclude from the courtroom any witness not at the time under
examination so that such witness cannot hear the testimony of other witnesses.” (Evid.
Code, § 777, subd. (a).) “The purpose of the order is to prevent tailored testimony and
aid in the detection of less than candid testimony.” (People v. Valdez (1986) 177
Cal.App.3d 680, 687.) We review the court’s ruling for abuse of discretion. (People v.
Tully (2012) 54 Cal.4th 952, 1004.) “[A] trial court does not abuse its discretion unless
its decision is so irrational or arbitrary that no reasonable person could agree with it.”
(People v. Carmony (2004) 33 Cal.4th 367, 377.)
Nieto contends that the court’s ruling was irrational because the court prejudged
Vega’s and Koch’s credibility when it concluded that the witnesses’ presence did not
16
carry any significant risk of causing them to be less than candid. We are not persuaded
that the court’s explanation of its reasoning shows that it had prejudged credibility. The
court merely stated its ruling in terms of the relevant legal standard, demonstrating its
familiarity with the case law on the topic.
In any event, assuming for the sake of argument that the court erred, Nieto fails to
carry his burden of showing prejudice. He argues that the claimed error denied him due
process and is reversible per se. Courts have identified “a small number of ‘structural’
errors at trial—i.e., ‘structural defect[s] affecting the framework within which the trial
proceeds’—that are reversible per se.” (People v. Tena (2007) 156 Cal.App.4th 598,
612.) But Nieto’s conclusory assertions do not establish that the claimed error should be
treated like a structural error at trial. (See People v. Lee (2015) 242 Cal.App.4th 161, 178
[“An error in the refusal to exclude a member of the public from a trial is not a structural
error”].)
Instead, Nieto must show that it is reasonably probable that he would have
obtained a more favorable result in the absence of the claimed error. (People v. Taylor
(1982) 31 Cal.3d 488, 499; see People v. Bradford (1997) 15 Cal.4th 1229, 1322 [denial
of motion to exclude victim-witnesses from the courtroom was not prejudicial]; Morales
v. 22nd Dist. Agricultural Assn. (2016) 1 Cal.App.5th 504, 536 [appellants had not shown
that granting the motion to exclude witnesses from the courtroom resulted in prejudice].)
There is no such reasonable probability. That is because Vega and Koch had notice of
Nieto’s anticipated testimony: Nieto’s declarations in support of the motions were
materially consistent with his testimony at the hearing. If Vega and Koch were inclined
17
to tailor their testimony to refute Nieto’s description of the relevant events, then they
could have used his declarations to do that. It thus is not reasonably probable that their
absence during Nieto’s testimony would have led to a more favorable result for Nieto.
For these reasons, Nieto fails to establish that the court prejudicially erred by
denying his motion to exclude Vega and Koch from the courtroom.
II. Denial of motions to vacate the convictions
Nieto argues that the court erred by denying both motions to vacate the
convictions. We disagree.
Section 1473.7, subdivision (a)(1) provides that “[a] person who is no longer in
criminal custody may file a motion to vacate a conviction” if it “is legally invalid due to
prejudicial error damaging the moving party’s ability to meaningfully understand, defend
against, or knowingly accept the actual or potential adverse immigration consequences of
a conviction or sentence.”
The movant must show three things. First, they must show that they did not
meaningfully understand the immigration consequences of their plea. (People v.
Espinoza (2023) 14 Cal.5th 311, 319 (Espinoza).) Second, they must show that their
misunderstanding constituted prejudicial error. (Ibid.) And third, they must show that
the conviction or sentence being challenged currently is causing “or has the potential to
cause removal or the denial of an application for an immigration benefit, lawful status, or
naturalization.” (§ 1473.7, subd. (e)(1).) The movant must establish their entitlement to
relief by a preponderance of the evidence. (§ 1473.7, subd. (e)(1).)
18
We independently review whether a movant has demonstrated entitlement to relief
under section 1473.7, subdivision (a)(1). (Espinoza, supra, 14 Cal.5th at pp. 319-320;
People v. Vivar (2021) 11 Cal.5th 510, 527-528 (Vivar).) “Independent review in this
context is not synonymous with de novo review. [Citation.] We exercise ‘“independent
judgment to determine whether the facts satisfy the rule of law.”’” (People v. Coca
(2023) 96 Cal.App.5th 451, 458.) “‘[W]e weigh all relevant circumstances, with no
single factor being dispositive in our consideration of the totality.’” (Ibid.) But we “may
not simply second-guess factual findings that are based on the trial court’s own
observations.” (Vivar, at p. 527.) We “afford ‘particular deference to factual findings
based on the trial court’s personal observations of witnesses.’” (Coca, at p. 458.)
A. The 2016 grand theft conviction
The court correctly denied the motion to vacate the grand theft conviction, because
Nieto failed to establish that he did not meaningfully understand the immigration
consequences of his plea to grand theft.
A noncitizen who is convicted of a crime involving moral turpitude within five
years of admission to the United States is deportable, provided that a sentence of one year
or longer may be imposed for the offense. (8 U.S.C. § 1227(a)(2)(A)(i).) In addition, a
noncitizen convicted of a crime involving moral turpitude generally is inadmissible.
felony conviction carries the harshest immigration consequences. Ordinarily, if a
noncitizen is found to be deportable, then they may ask the Attorney General for certain
forms of discretionary relief from removal, such as asylum and cancellation of removal.
(Moncrieffe v. Holder (2013) 569 U.S. 184, 187 (Moncrieffe).) But a noncitizen
convicted of an aggravated felony is both deportable and ineligible for those discretionary
forms of relief.4 (Ibid.)
The record shows that Nieto did not meaningfully understand those consequences.
He testified that Koch merely told him that the offense to which he pled (Health & Saf.
Code, § 11366) was better for immigration purposes than possession for sale. Koch
similarly testified that he told Nieto the plea offense was better for immigration purposes
than possession for sale. That was incorrect—both are aggravated felonies for
4 There are forms of nondiscretionary relief that may be available to noncitizens convicted of aggravated felonies, but those forms of relief “require the noncitizen to show a greater likelihood of persecution or torture at home than is necessary for asylum.” (Moncrieffe, supra, 569 U.S. at p. 187, fn. 1 [discussing withholding of removal and deferral of removal for noncitizens convicted of aggravated felonies].) 22
immigration purposes, so one is just as problematic as the other. There is no evidence
that Koch understood that or advised Nieto to that effect. Koch said that he knew an
aggravated felony was particularly damaging because it could lead to mandatory
deportation, and he knew that the possession for sale offense was an aggravated felony.
But he could not say that he knew the plea offense was an aggravated felony.
Moreover, there is no other evidence that Nieto understood that he was pleading to
an aggravated felony or that such a conviction triggered the harshest immigration
consequences. The plea form stated only that his plea “may, and for certain offenses
will,” result in deportation, exclusion from admission, and denial of naturalization. Koch
said that he told Nieto the plea offense “could be bad for immigration” in that it could
lead to deportation and denial of naturalization. None of that shows that Nieto
meaningfully understood that he would be deportable and also ineligible for discretionary
forms of relief. In short, even if we defer to the trial court’s finding that Koch’s
testimony was credible, the record shows that Koch misunderstood the immigration
consequences of Nieto’s plea, so he could not have given Nieto a meaningful
understanding of them.
2. Prejudicial error
Nevertheless, the court did not err by denying Nieto’s motion, because he failed to
carry his burden of establishing prejudice.
Prejudice for these purposes means “a reasonable probability that the defendant
would have rejected the plea if the defendant had correctly understood its actual or
potential immigration consequences.” (Vivar, supra, 11 Cal.5th at p. 529.) “‘Factors
23
particularly relevant to this inquiry include the defendant’s ties to the United States, the
importance the defendant placed on avoiding deportation, the defendant’s priorities in
seeking a plea bargain, and whether the defendant had reason to believe an immigration-
neutral negotiated disposition was possible.’ [Citations.] Also relevant are the
defendant’s probability of obtaining a more favorable outcome if he had rejected the plea,
as well as the difference between the bargained-for term and the likely term if he were
convicted at trial. [Citation.] These factors are not exhaustive, and no single type of
evidence is a prerequisite to relief.” (Espinoza, supra, 14 Cal.5th at pp. 320-321.)
To carry their burden of showing prejudice, the “defendant must provide
‘“objective evidence”’ to corroborate factual assertions. [Citation.] Objective evidence
includes facts provided by declarations, contemporaneous documentation of the
defendant’s immigration concerns or interactions with counsel, and evidence of the
charges the defendant faced.” (Espinoza, supra, 14 Cal.5th at p. 321; accord Vivar,
supra, 11 Cal.5th at p. 530 [“when a defendant seeks to withdraw a plea based on
inadequate advisement of immigration consequences, we have long required the
defendant corroborate such assertions with ‘“objective evidence”’”].)
Nieto testified that he would have rejected the plea and fought the controlled
substance case if he had meaningfully understood the immigration consequences. As for
objective evidence corroborating that assertion, he argues that he established significant
ties to the community. “Community ties may be established by length of residence;
immigration status; lack of connection to the country of origin; connections to family,
24
friends, or the community; work history or financial ties; or other forms of attachment.”
(Espinoza, supra, 14 Cal.5th at p. 321.)
The record shows that Nieto had some ties to the United States, but that evidence
is not particularly strong. At the time of the plea, he had lived in the country for roughly
six years. He lived with his partner and presumably his minor children, the youngest of
whom was born in the United States. He appeared to have a circle of friends; he
submitted five character reference letters from them. And he had a job at the time of the
2016 plea, although it is unclear what that was, how long he had the job, and whether he
still had it at the time of the 2019 plea.
Other exhibits in support of Nieto’s motion included the 2021 grant deed, the 2022
paperwork for the California corporation, and the 2023 mortgage statement. That
evidence shows that Nieto continued to establish ties after his plea in 2019. But given
that those ties did not exist when he pled, they are not strong evidence that he would have
rejected the plea in 2019. Moreover, he does not lack connections to Colombia. His
partner and two of his children were born there, and his parents and extended family live
there. As for his family’s immigration status, Nieto was in the country unlawfully after
he overstayed his tourist visa. There is no evidence that his wife and two oldest children
were in this country lawfully. He testified that he was applying for a U visa because his
daughter was a rape victim. Assuming that the rest of his family also had applied for a
U visa, the record does not show whether those applications have been granted.
Overall, Nieto showed some ties to the United States, but the evidence is not
nearly as compelling as the evidence of defendants’ ties in other cases. For instance, in
25
Espinoza, the defendant had lived in California for 23 years at the time of his plea.
(Espinoza, supra, 14 Cal.5th at p. 322.) He had been a lawful permanent resident for
roughly 17 years, and his wife and children were United States citizens and lived in
California all of their lives. (Id. at pp. 317, 322.) He was the financial provider for his
family and had started his own business after working for others for many years. (Id. at
pp. 318, 322.) His parents and siblings also lived in the United States. (Id. at p. 322.)
Those “deep and long-standing ties” weighed in favor of finding prejudicial error. (Id. at
p. 323.) Similarly, in Vivar, the defendant entered this country at age six as a lawful
permanent resident. (Vivar, supra, 11 Cal.5th at p. 517.) At the time of his plea, he had
lived here for 40 years. (Id. at p. 530.) His wife, two children, and two grandchildren
were all United States citizens who lived in California. (Ibid.) The defendant had
“virtually no ties to Mexico,” his birth country, and “spoke Spanish ‘like an American.’”
(Ibid.) He “found it ‘difficult to function in Mexican society because people treat [him]
like an outsider.’” (Ibid.) Those “robust ties” constituted objective evidence
corroborating his assertion that he would not have entered his plea if he had known that it
would require his deportation. (Id. at pp. 517, 530.) Nieto’s ties exist, but they are not
similarly robust or deep and long standing.
Besides the evidence of Nieto’s ties to this country, there was evidence that
avoiding deportation was important to Nieto. Nieto testified that his immigration status
was the “most important thing to” him. Koch testified that Nieto was very concerned
about immigration and wanted to able to adjust his immigration status in the future.
Nieto also testified that he had faced persecution by a paramilitary group in Colombia
26
and feared for his life if he returned. But he filed an untimely application for asylum
nearly seven years after arriving in the United States, after his immigration court
proceedings had begun. (See Cong Xian Lin v. Holder (9th Cir. 2010) 610 F.3d 1093,
1095-1096 [asylum applicants must demonstrate that they filed the application within one
year after arrival].) That evidence shows that seeking asylum was not a priority for him
and thus undermines his claims about persecution from the paramilitary group.
Nieto further argues that he demonstrated prejudice because Koch was unaware of
a certain immigration-safe strategy, “the unspecified controlled substance defense,” and
failed to advise Nieto of the strategy. The claims bear on “whether alternative,
immigration-safe dispositions were available at the time of the defendant’s plea.”
(Espinoza, supra, 14 Cal.5th at p. 323.) But Nieto makes no attempt to explain the
unspecified controlled substance defense, and the only evidence he points to is the
testimony that Koch was unaware of the defense. Like every other factor showing
prejudice, the availability of immigration-safe dispositions must be supported by
evidence. (See id. at pp. 321, 324 [the defendant offered a declaration from an
immigration law expert showing that there were alternative pleas that would not have
resulted in mandatory deportation]; Vivar, supra, 11 Cal.5th at p. 531 [“the
uncontradicted declaration from Vivar’s immigration expert stated that Vivar could’ve
entered such a plea without subjecting himself to mandatory deportation”].)
The evidence in the record regarding the unspecified controlled substance defense
indicates that the defense was unavailable to Nieto. The court admitted certain pages of
the ILRC guide into evidence. On one of those pages, the guide states that some
§ 1170, subd. (h)(1).) The other felony charges in the complaint likewise were
punishable by a 16-month, two-year, or three-year term. (§§ 470b, 472-473, 484i, subd.
(c), 1170, subd. (h)(1).) And as regards the probation violation in the 2016 case, the
30
court was not required to reinstate Nieto’s probation. (§ 1203.2, subd. (c).) It had the
power to revoke and terminate probation and impose a sentence for grand theft (ibid.), an
offense that also was punishable by a 16-month, two-year, or three-year term. (§§ 489,
1170, subd. (h)(1).) By comparison, three years of probation, 270 days of jail time, and
reinstatement of probation in the 2016 case “offer[ed] significant benefits over the
probable consequences of proceeding to trial.” (People v. Martinez (2013) 57 Cal.4th
555, 564.)
Nieto’s remaining argument is that his ineligibility for a U visa demonstrates
prejudice. Again, Nieto testified that he was applying for a U visa on the ground that his
daughter was a victim of rape. His ineligibility for the U visa establishes the third
element that he must prove—that the controlled substance conviction “is currently
causing or has the potential to cause removal or the denial of an application for an
immigration benefit, lawful status, or naturalization.” (§ 1473.7, subd. (e)(1).) But Nieto
does not explain how the U visa application demonstrates prejudice, that is, a reasonable
probability that he would have rejected the plea. That is because the record contains no
evidence regarding when the crime against his daughter occurred or when he applied for
the U visa. During argument, Nieto’s counsel stated that the rape occurred when the
child was 13 years old. Counsel’s argument is not evidence. (In re Zeth S. (2003) 31
Cal.4th 396, 413, fn. 11.) But even if we were to consider the statement as evidence, the
oldest daughters’ birth certificates show that one was born in March 2007, and the other
was born in December 2008. They would have turned 13 years old in 2020 and 2021,
31
after Nieto pled in 2019. Nieto does not explain how a crime that had not yet occurred
could have led him to reject the plea in 2019.
On balance, we conclude that Nieto failed to show a reasonable probability that he
would have rejected the plea to the controlled substance offense if he had understood the
immigration consequences. He offered evidence of some ties to the United States and
evidence that his immigration status was important to him. But his evidence does not
address numerous other factors bearing on the prejudice analysis. In particular, there is
no evidence that he had reason to believe an immigration-neutral negotiated disposition
was possible, and the strength of prosecution’s case as well as Nieto’s criminal record
suggest that such an alternative was not available. In light of the lack of alternatives, the
plea deal offered significant benefits over the probable consequences of proceeding to
trial.
For all of these reasons, we conclude that the court did not err by denying Nieto’s
motion to vacate the controlled substance conviction. Nieto demonstrated that he did not
meaningfully understand the consequences of his plea, but considering the totality of the
circumstances, he failed to show prejudicial error.
32
DISPOSITION
The orders denying Nieto’s motions to vacate his convictions are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
MILLER ACTING P. J.
FIELDS J.
33
AI Brief
AI-generated · verify before citing
Holding. The court affirmed the denial of the defendant's motions to vacate his 2016 and 2019 convictions, finding that he failed to establish he did not meaningfully understand the immigration consequences of his pleas.
Issues
Did the trial court abuse its discretion by denying the defendant's motion to exclude witnesses from the courtroom?
Did the defendant establish that he did not meaningfully understand the immigration consequences of his pleas under Penal Code section 1473.7?
Did the defendant establish that he would not have entered the pleas had he known the immigration consequences?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The court ruled that Nieto failed to establish he did not meaningfully understand the immigration consequences of his pleas.”
“The court also ruled that Nieto failed to establish “that he would not have entered the pleas even had he known about those consequences in more detail than he already [did]”
“The court noted that Vega’s and Koch’s testimony was consistent with the plea forms, in which Nieto initialed the sections advising him of possible immigration consequences.”